AIDS and the Law: Discrimination and Confidentiality

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30th Sep 2015

Employment Lawyers

By Elizabeth Zuckerman, Esq.

  • Confidentiality
    1. State Law (N.J.S.A. 26:5C-1 et seq. and N.J.A.C. 8:57-2.1 et seq.):
      N.J.A.C. 26:5C-1, et seq. is the New Jersey AIDS Assistance Act (“NJAAA”). It was passed in 1984 and supplemented in 1990 and 1995 to address the problem of the spread of AIDS.

      1. Because the “effective identification, diagnosis, care and treatment of persons” with AIDS was declared by the Legislature to be of “paramount public importance”, the law requires all diagnosed cases of AIDS and HIV infection to be reported to the Department of Health along with identifying information about the person diagnosed, unless reported through anonymous testing site.. N.J.A.C. 26:5C-6.
      2. In conjunction with this reporting requirement, the law provides that any record containing identifying information about a person who has or is suspected of having AIDS or HIV infection “is confidential and shall be disclosed only for the purposes authorized by this act.” N.J.S.A. 26:5C-7
      3. Content of record may be disclosed with “prior written informed consent of the person who is the subject of the record” or, if the person is legally incompetent or deceased, with the consent of:
        1. the person’s executor,
        2. spouse or primary caretaking partner, or
        3. the commissioner of health if the deceased person has no authorized representative or next-of-kin.
      4. “Prior written informed consent” means “consent obtained pursuant to policies and procedures prescribed in 42 C.F.R. §2.31.” N.J.A.C.26:5C-5NOTE: For purposes of this statute, a minor is someone under the age of 12.
      5. If prior written consent of person who is the subject of the record is not obtained, the person’s records may only be disclosed under limited conditions including:
        1. for purpose of conducting scientific research (but neither the report nor the research personnel shall identify or disclose the person’s identity),
        2. to qualified personnel involved in medical education or in the diagnosis and treatment of the person who is the subject of the record,
        3. other instances required or authorized by law.
      6. Record may be disclosed by court order upon showing of good cause.
        1. Case examples:
          1. In prosecution for aggravated sexual assault, the State was not entitled to disclosure of defendant’s medical records despite tip that defendant had AIDS.
          2. Patient who received transfusion of blood containing AIDS virus could learn name of donor.
      7. Statute requires primary caregiver for pregnant women or post-partum to provide information about AIDS and benefits of being tested for HIV. Results must be kept confidential.
      8. In 1995, the NJAAA was amended to add provisions relating to the testing of pregnant women for HIV. N.J.S.A. 26:5C-15, et seq.
        1. The New Jersey Department of Health and Senior Services promulgated regulations relating to HIV counseling and testing of pregnant women. N.J.A.C. 8:61.4.1(g) provides that “information and test results obtained pursuant to this section shall be held confidential in accordances with [the Aids Assistance Act]. . . . The health care practitioner caring for the infant shall also keep this information confidential in accordance with [the Aids Assistance Act]. “
      9. Violations:
        1. A person who has or is suspected of having AIDS or HIV who is aggrieved as a result of a violation of this act may commence a civil action against the individual or institution who committed the violation to obtain appropriate relief, including:
          1. actual damages,
          2. equitable relief,
          3. reasonable attorney’s fees and court costs,
          4. punitive damages if violation evidences wanton recklessness or intentionally malicious conduct.
        2. Each disclosure made in violation of this act is a separate and actionable offense.
        3. Case examples:
          1. Doe v. Arts, 360 N.J.Super. 492, (App. Div. 2003): Verdict for plaintiff upheld in medical malpractice case where physician breached standard of care, in part, by disclosing the results of the patient’s HIV test to his girlfriend.
          2. Estate of Behringer v. Medical Center at Princeton, 249 N.J.Super. 597 (Law Div. 1991): Judgment for plaintiff, a physician who was diagnosed with HIV/AIDS, against hospital for failing to keep his records confidential.
    2. Federal Law (Health Insurance Portability Act of 1996 – HIPAA):
      1. The “Privacy Rule” section of HIPAA became effective April 14, 2001. It requires compliance by April 14, 2003 (small health plans have until April 14, 2004).
      2. The Privacy Rule prevents disclosure of protected health information by Covered Entities to non-covered entities without authorization from the patient.
        1. “Covered Entities” include health care providers, information clearing houses and health plans (including group health plans, health insurance issuers, HMOs, Medicaid programs, Medicare programs and long-terms care policies)
        2. The Privacy Rule creates a national standard to protect individuals’ medical records and other personal health information. It is a “floor”, not a “ceiling”, meaning more protective state regulations are controlling; less protective regulations are pre-empted.
      3. The Department of Health and Human Services issued written guidelines, with short summaries of the key provisions. For guidance, see http://aspe.os.dhhs.gov/admnsimp/final/pvcguide1.htm
      4. Under HIPAA, disclosure is permitted: to the individual patient; for treatment, payment, and health care operations; incident to a use or disclosure permitted by the act; and pursuant to authorizations, agreements or certain public use exceptions.
        1. For an authorization to be valid, it must contain: 1) the information to be disclosed; 2) who is authorized to disclose the information; 3) to whom the information is to be disclosed; 4) the purpose of the disclosure (not necessary if the treated individual initiates the authorization); 5) an expiration date for the authorization; 6) a note that the authorization may be revoked; 7) a warning that any released information may be beyond the reach of HIPAA; 8 ) a signature and date; and 9) a personal representative’s capacity, if applicable.
      5. HIPAA Privacy Rules contain administrative requirements:
        1. A Covered Entity must designate a Privacy Official, and contact person or office;
        2. A Covered Entity must train all its employees on its policies and procedures with respect to Protected Health information (and must document that the training has been provided);
        3. A Covered Entity must have in place safeguards to protect the privacy of Protected Health Information;
        4. A Covered Entity must provide a process to make complaints;
        5. A Covered Entity must have and apply appropriate sanctions against employees who violate its policies and procedures (and must document when sanctions are applied);
        6. A Covered Entity must mitigate, to the extent possible, known harmful effects of improper use or disclosure;
        7. Etc. (no intimidation or retaliation, no waiver of rights, policies and procedures, documentation).
      6. HIPAA Privacy Rules can be enforced through civil and criminal penalties, and through private actions.
        1. The HHS Secretary may impose civil penalties of up to $100 per violation, not to exceed $25,000 per requirement or prohibition, per year.
        2. Criminal penalties may be imposed for a knowing violation, of up to $50,000 and/or 1 year of imprisonment. If the offense is committed under false pretenses, the fine can be up to $100,000 and/or 5 years imprisonment. If the offense is committed for financial gain, personal gain or malicious harm, the person may be fined up to $250,000 and/or imprisoned up to 10 years.
        3. HIPAA does not provide for a private action, but the Privacy Rules create duties of care that may lead to tort actions and claims under ERISA
  • Discrimination:
    1. Rehabilitation Act of 1973:
      1. Limited to federal contractors, recipients of federal grants and participants of federal programs.
      2. Protects people with AIDS/HIV or people regarded as having AIDS/HIV.
    2. Americans with Disabilities Act of 1990 (ADA):
      1. Became effective 7/12/92.
      2. Protects people with AIDS/HIV or people regarded as having AIDS/HIV.
      3. Requires reasonable accommodation, in addition to prohibiting discrimination against qualified people with disabilities.
      4. Applies to all employers with 15 or more employees (including labor organizations and employment agencies).
      5. Applies to all employees, job applicants and prospective job applicants. Also applies to building accessibility and to public accommodation.
      6. Protection not limited to American citizens.
      7. Prohibits discrimination in: job application procedures, hiring or discharge of employees, employee compensation, advancement, job training, and other terms, conditions and privileges of employment (e.g. leaves of absences, fringe benefits, etc.).
      8. Prohibits discrimination against an employee or applicant based on individual’s relationship or association with a disabled person (e.g. an employee who lives with a person with AIDS).
      9. Requires employers to make reasonable accommodations to qualified disabled job applicants and employees.
        1. “reasonable accommodation” does not require employer to make any modification, adjustment, or change in a job description or policy that would fundamentally alter the essential functions of the job in question;
        2. “qualified” means a person with a disability who meets all of an employer’s job-related selection criteria except such criteria he or she cannot meet because of a disability;
        3. accommodation is not required if it would place an “undue hardship” on the employer’s business operations;
        4. employers must only make reasonable accommodations for “known disabilities” of an applicant or employee.
      10. Remedies for violation of the ADA include equitable relief (e.g. back pay and front pay), prejudgment interest, compensatory damages (e.g. emotional pain, suffering, inconvenience, loss of enjoyment of life, etc.) and punitive damages.
        1. compensatory and punitive damages are limited based on the size of the employer (e.g. 100 to 500 employees, $100,000);
        2. litigant entitled to a jury trial if compensatory or punitive damages are sought;
      11. Must first exhaust administrative remedies (EEOC): file within 300 days.
    3. New Jersey Law Against Discrimination (LAD):
      N.J.S.A. 10:5-1 et seq.

      1. Broader than the ADA: applies to discrimination in employment, housing, granting of credit, business, public accommodation, and for retaliation.
      2. Protects people suffering from AIDS/HIV, or perceived to be, unless the illness reasonably precludes the performance of the particular employment.
      3. Two (2) year statute of limitations to file in Superior Court; 180 days to file with DCR.
      4. Optional administrative procedure with Division on Civil Rights:
        1. must file within 180 days;
        2. advantages: no cost to plaintiff, no attorney needed, opportunity for free discovery, quick resolution, can transfer to OAL after 180 days from filing of complaint, if probable cause found to exist can transfer case to OAL or withdraw and file in Superior Court;
        3. disadvantages: monetary awards usually low, finding of no probable cause appealable only to Appellate Division (i.e. lost opportunity for a full trial on the merits), investigation does not stay time for filing in Superior Court;
        4. recommendation: use administrative procedure, if at all, as an investigative technique only and not for adjudicatory purposes (WARNING: be sure to dismiss complaint before finding of probable cause or no probable cause; watch for running of statute of limitations);
      5. Remedies: jury trial available, back pay, front pay, emotional distress, reinstatement, punitive damages, prejudgment interest, attorney’s fees (possibly enhanced), costs.
    4. Family Leave Acts
      1. New Jersey Family Leave Act
        1. Covers employees who have worked for a covered employer for at least 12 months prior to the leave.
        2. Can be used for serious health condition of a child, parent or spouse (but not your own health condition).
        3. Allowed up to 12 week (unpaid) in any 24 month period. Intermittent leave (at least one week but less than 12) available only for serious medical conditions and only if medically necessary. Reduced schedule may also be available.
        4. Employer must continue benefits during the leave.
      2. Federal Family and Medical Leave Act
        1. Also applies for employee’s serious health condition.
        2. More flexibility with intermittent leave.
        3. Health benefits must be maintained; however if employee fails to return from leave the cost must be repaid.

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